Healthy public feeling

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The term healthy people's feeling is a paraphrase used at least since the Wilhelmine Empire for the allegedly uneducated opinion of a "healthy people's community ". During the time of National Socialism , it became a fundamental legal term for the Nazi judiciary . After the end of the Nazi regime, leading West German politicians unsuccessfully demanded that the content of “healthy people's feelings” be included in the Basic Law as a generally binding “moral order”.

classification

The term served in the sense of conservative and völkisch views, the mental health of a “ people ” allegedly threatening behavior like homosexuality or life reform activities, the removal of the death penalty from the state criminal repertoire and artistic, however, as “ degenerate ” or “ degenerate music ” To devalue works as “foreign to the people” and to exclude them. This procedure was justified with an assumed “will of the people” or an allegedly existing “national community” and the assertion that the attacked liberal and left counter-opinion lacked a majority .

prehistory

The term with its specific contents, as far as its application to the legal system is concerned, is traced back in the literature to the leading lawyer of his time Friedrich Carl von Savigny (1779–1861). Savigny saw in the state an "invisible ... organic appearance", an "animated greatness of nature" and the "physical figure of the spiritual national community", which he endowed with a " folk spirit ". He derived the legal system as an “organized natural product”. Leading Nazi law professors followed up on Savigny, describing him as " Greater German " and as the one who had disclosed "the volkish roots of law", working out as the "deepest source of law the volkish legal consciousness". According to Joachim Rückert , the Savigny analysis shows that “the Savigny and Nazi texts on the people / people's sentiments are in a methodological parallel”.

With "people" in the sense of Savigny and the user of the word of "healthy people feeling" are not meant the lower classes of the population ( plebs ) or the eligible population of a state ( demos ), but a "people" in the sense of a nationalistic-ethnic definition of the Conceptual content ( ethnos ).

Empire and Weimar

The reduction of the use of the term to the Nazi era, as it takes place, is incorrect, because at the latest in the Wilhelmine Empire, representatives of the bourgeois parties in the media, politics and the judiciary also invoked the “healthy popular feeling”. A spectacular case that focused on this term and the performances associated with it was the play " Der Reigen " by Arthur Schnitzler (1896/97), which was published in 1900, partially performed in 1903 and shown in full for the first time in 1920. It would, it was said, “scorn every healthy public sentiment” and “rightly cause offense in large sections of the population”. The “round dance” has been accompanied through the decades by media and political condemnations for violating the healthy popular feeling from different areas of politics and culture.

Appeals to the healthy public sentiment were a constant theme in the Weimar Republic . According to Hans Hattenhauer, “lines of development” into the Nazi era can be identified under the sign of healthy public sentiment , “which were already laid out in the German Empire and the Weimar Republic”, which have only “continued” since 1933.

For example, the Kieler Neuesten Nachrichten 1919, which is close to the bourgeois-German nationalist DNVP , declared on the “disease” of homosexuality that it was not about the question of “how the individual sick is to be cured or treated, but rather whether the people are healthy to orientate on the tendencies of these degenerates ”.

In 1925, the Berlin Upper Film Inspectorate ruled on the film “Must a woman become a mother?” That it would have a devastating effect “on people's healthy feelings” and forbade it.

Rudolf Schetter, a member of the Reichstag for the Catholic Center , who represented the punishment of homosexuality, declared in the relevant committee in 1929 that "the elimination of criminality would contradict healthy public sentiment", while the KPD, SPD and the left-liberal DDP contradicted the appeal to popular sentiment.

Richard J. Evans quotes a plea in favor of the death penalty in the bourgeois German daily newspaper of October 26, 1927 , with the words “the healthy feeling of the people” demanded “for the heaviest guilt also the most severe atonement” and notes that “actually already during the whole Duration of the Weimar Republic “the healthy public sentiment across party lines was“ cited (by all) to justify ”those who advocated the continuation of the death penalty.

National Socialism

The law amending the Criminal Code of June 28, 1935, made healthy public opinion a legal concept. In § 2 it now said: “Whoever commits an act which the law declares to be punishable or which, according to the basic idea of ​​a criminal law and according to the healthy public feeling, deserves punishment. [...] “The law on the equalization of civil rights claims that disadvantages which had been inflicted by political events“ in the context of the National Socialist uprising ”should be compensated, insofar as this claim was based on healthy public opinion to eliminate unreasonable ones Hardship is required. The Reich Minister of the Interior then decided "at his discretion". § 48 para. 2 Testament law resulted in the annulment of a will when in a healthy popular sentiment has been violated contradictory manner against the considerations which have to take a responsible testator against family and "national community". The Enforcement Abuse Act of December 13, 1934 also referred to healthy public opinion .

By introducing it into law, it should give priority to other legal categories with political content.

The general clause of a healthy popular feeling expanded the judges' scope of discretion. Decisions based on a “people's spirit” and the “feeling and thinking of the people” became possible, even without this reference “having already become a rule”. For the judge , according to Heinrich Lange , this results in the "high task of not only understanding and applying the law intellectually, but also feeling and shaping German law out of community ties".

The appeal to a healthy public sentiment was controversial under National Socialism among legal scholars . Leopold Zimmerl criticized the attempts to reshape the existing law. The constant reference to it does not offer the judge what he needs. It is an indefinite reference with contentious content: “As little as someone has to be the best nationalist, the most frequent and loudest 'Heil Hitler'! shouts, it is so little proof of the closeness of the law to the people when it repeatedly claims to be it. "

Federal Republic of Germany

Conservative politicians have repeatedly taken up the word of healthy popular sentiment. For example in 1952 in a conflict over nude scenes with Hildegard Knef in the film “ The Sinner ”, when conservative film opponents called upon “People's Voice” and “Healthy People's Sensibility”. In the 1960s, the constitutional lawyer and former President of the Rhineland-Palatinate Constitutional Court, the later honorary doctor of the Trier Theological Faculty and CDU politician Adolf Süsterhenn tried with the help of a signature campaign " clean screen " and a criticism of the violation of the healthy popular feeling through film presentations to enforce an amendment to the Basic Law . The constitutional passage, “Economy, research and teaching are free” should be expanded to include the wording that this freedom only applies “within the framework of the general moral order”. Also in discussions about the reintroduction of the death penalty, of which Süsterhenn was one of the proponents, or in the evaluation of art, the healthy public sentiment was used in the sense of a generally binding conservative "moral order". The term is used critically as a mark of a popular defensive attitude against minority groups, which extends to exemption from punishment for mass crimes committed by the Nazis against them, for example in the statute of limitations debate of the 1960s. The magazine Der Spiegel headed a detailed dossier on the crimes against Jews, "Gypsies" and "Bolsheviks" and the question of the statute of limitations with "Nazi crimes. Statute of limitations. Healthy public feeling".

In 1994 constitutional lawyer Ingo von Münch saw criticism of the use of the term as "excessive language criticism". In the same place he also used the category of race , albeit "cautiously". In doing so, he turned against what he saw as an alleged political "taboo" of the use of terms. In 2018, the director of the WDR , Tom Buhrow , said in response to criticism from the NRW criminal defense association and citing Münch's objection that the word could be used in the sense of a "slang variant of the term 'legal feeling'" regardless of his Nazi past .

The journalist Henryk M. Broder, on the other hand, sees the healthy popular feeling as a special "German counterpart to Common Sense", which "developed into full bloom and as a substitute for law and order" in the years from 1933 to 1945, but afterwards "for a while" had to rest "until it had recovered from its excesses so far that it could come back to life in the 50s." Since then, "the healthy public feeling has undergone a number of metamorphoses."

The film scholar and author Joachim Hammann formulates a criticism with reference to Adolf Süsterhenn. The healthy public sentiment is "notorious". Hammann goes far beyond the narrow version of the Nazi lawyers by stating that healthy public sentiment is always what matters "when it is to be proven that the insanity that one taps into is not only true and right and healthy (!), but that, beyond that, everyone would think that way ”(emphasis added in the original, see also argumentum ad populum ).

literature

Primary literature:

  • H. Lange: General clauses and new law , in: Juristische Wochenschrift , 62 (1933), pp. 2858f.
  • Karl Peters : The healthy public feeling. A contribution to the doctrine of legal sources of the 19th and 20th centuries . DStR 1938, pp. 337-350.
  • Erich Mirievsky: The popular view and its consideration in the criminal law science of the 19th century and the previous jurisprudence of the Reichsgericht in criminal matters . Dresden 1940 (dissertation 1940).
  • Robert Bartsch : The 'healthy public feeling' in criminal law . Hamburg 1941 (dissertation 1940).
  • Ferdinand Kadečka: Healthy public sentiment and basic legal idea . ZStW 62 (1942/44), pp. 1–27.

Secondary literature:

  • Adolf Süsterhenn : Against the dictatorship of indecency, in: Rheinischer Merkur , April 30, 1965.
  • Does a dictatorship threaten indecency? Spiegel conversation with the CDU member of the Bundestag Professor Dr. Adolf Süsterhenn on the freedom of art, in: Der Spiegel , No. 21, May 19, 1965.
  • Joachim Rückert : The 'healthy public sentiment' - an inheritance from Savigny? , in: Journal of the Savigny Foundation for Legal History, German Department, Vol. 103 (1986), pp. 199–247.
  • Hubert Rottleuthner : Volksgeist, healthy public awareness and opinion polls . KritV 1987, pp. 20-38.
  • Adolf Süsterhenn: Writings on natural, state and constitutional law, ed. by Peter Bucher, Mainz 1991.
  • Ingo von Münch : tabooing of terms, NJW 1994, pp. 634–635.
  • Angelika Kleinz: Individual and Community in Legal German Studies. The jury and the 'healthy public sentiment' . Heidelberg 2001.
  • Sybille Steinbacher : The struggle for morality and decency in the early Federal Republic , Siedler München, 2011, ISBN 978-3-88680-977-6 .

Web links

Individual evidence

  1. ↑ a b Cardinal Joachim Meisner : Cardinal Meisner criticizes degenerate culture on welt.de
  2. ↑ Joachim Rückert: Injustice through right. On the legal history of the Nazi era. 2018 On the legal history of the Nazi era, 2018 (Contributions to the legal history of the 20th century, B. 96), Tübingen 2018, p. 92.
  3. ↑ Joachim Rückert: Injustice through right. On the legal history of the Nazi era. (Contributions to the legal history of the 20th century, vol. 96), Tübingen 2018, p. 73.
  4. ↑ Gerd K. Schneider, The Reception of Arthur Schnitzler's Reigen, 1897–1994: Text, Performances, Film Adaptations, Press Review and Other Contemporary Commentaries, Riverside (California) 1995.
  5. ↑ Manfred Schmitz: "The dance" and the healthy public feeling. On the technique of political defamation, in: Hans Otto Horch (Ed.), Judentum, Antisemitismus und Europäische Kultur, Tübingen 1988, pp. 267–288.
  6. ^ Gerd K. Schneider , The Reception of Arthur Schnitzler's Reigen, 1897–1994. Text, performances, film adaptations, press reviews and other contemporary commentaries, Riverside (California) 1995, p. 230.
  7. ↑ Hans Hattenhauer , Changes in the Richter model in the 19th and 20th centuries, in: Ralf Dreier / Wolfgang Sellert (eds.), Law and Justice in the "Third Reich", Frankfurt / M. 1989, pp. 9-33, here: pp. 26, 28.
  8. ↑ Kiel Latest News, September 7, 1919, quoted in in: Thorsten Eitz , Isabelle Engelhardt , Discourse History of the Weimar Republic, Hildesheim 2018, p. 234.
  9. ↑ Jürgen Peter , Gerhard Baader , Public Health, Eugenics and Racial Hygiene in the Weimar Republic and in National Socialism. Health and illness as a vision of the national community, Frankfurt / M. 2018, p. 98.
  10. ↑ October 16, 1929, 85th meeting of the 21st committee, cited above. in: Thorsten Eitz, Isabelle Engelhardt, Discourse History of the Weimar Republic, Hildesheim 2018, p. 252.
  11. ^ Richard J. Evans, Death Penalty in the Weimar Republic, in: Zivilisation und Barbarei. The contradicting potentials of modernity. Detlef Peukert in memory, ed. by Frank Bajohr , Werner Johe and Uwe Lohalm , Hamburg 1991, pp. 145–167, here: p. 162.
  12. ↑ RGBl. 1935 I, p. 839.
  13. ↑ RGBl. 1934 I, p. 1234.
  14. ↑ Bernd Mertens: Legislation in National Socialism , Tübingen 2009, p. 103.
  15. ^ Karl Peters: The healthy people's feeling. A contribution to the doctrine of legal sources of the 19th and 20th centuries, DStR 1938, pp. 337-350, p. 343.
  16. ^ Heinrich Lange: General Clauses and New Law , in: Juristische Wochenschrift, 62 (1933), pp. 2858–2859, p. 2859.
  17. ↑ Cf. Robert Bartsch: The 'healthy people's feeling' in criminal law, Hamburg 1941 (Diss. 1940).
  18. ↑ Leopold Zimmerl: Law and material justice in criminal law .
  19. ↑ Leopold Zimmerl: Law and Material Justice in Criminal Law, in: Contributions to the restructuring of German law. The Marburg Faculty of Law and Politics celebrates the 70th birthday of Professor Dr. jur., Dr. phil., Dr. rer. pole. hc Erich Jung, Marburg 1937, pp. 222–242, p. 241.
  20. ↑ See: The Sinner Trial - a teaching, in: Rheinische Post , November 1, 1952.
  21. ↑ Kurt Marti, Notes and Details 1964-2007. Articles from the journal Reformatio, Zurich 2010, p. 77.
  22. ^ Gesundes Volksempfinden , Der Spiegel, 1965.
  23. ↑ Der Spiegel, No. 11/1965, March 10, 1965
  24. ^ Ingo von Münch: Tabuisierung von Definitions , NJW 1994, p. 634.
  25. ↑ WDR. The director of the Criminal Defense Lawyers Association of North Rhine-Westphalia, July 4, 2018, [1] .
  26. ↑ Michael Miersch , Henryk M. Broder , Josef Joffe , Dirk Maxeiner , Everything used to be better. A ruthless review, Munich 2015.
  27. ↑ Joachim Hammann, Sex, Jungs, Rock 'n' Roll and Jesus: The Roman of the Sixties, Norderstedt 2018, p. 59 (emphasis in the original).